Site Mobile Navigation

Candid Talks by Detainee Were Caught on U.S. Tapes

Ahmed Khalfan Ghailani, the former Guantánamo detainee now on trial in Federal District Court in Manhattan, has been interrogated repeatedly over the years: by the Central Intelligence Agency, by the Federal Bureau of Investigation and by the Defense Department.

And while there has been much focus on what he said during those sessions, the government has also been listening to him in another way.

At the military prison at Guantánamo Bay, Cuba, the government was recording candid conversations he had with at least one other detainee.

The contents of the recordings are classified, and they have not been mentioned to the jury in Mr. Ghailani’s trial, which has entered its third week.

But the existence of the recordings, which have been briefly cited in public court documents, suggests that the government has had another source of intelligence about detainees and could someday face the issue of whether such statements could be useful in a civilian court.

Mr. Ghailani is the first former Guantánamo detainee to be moved into the civilian system for trial, and his case has raised significant legal issues that could recur if the government tries detainees like Khalid Shaikh Mohammed in federal court.

The judge, Lewis A. Kaplan, recently barred prosecutors from using a witness who was found out about through interrogation of Mr. Ghailani when he was in C.I.A. custody, a time when his lawyers say he was tortured.

These recordings appear to have been made under less coercive conditions. “The recordings at Guantánamo” revealed Mr. Ghailani to be in “a relaxed state, in which Mr. Ghailani was quite candid with the other detainee,” a court-appointed psychiatrist wrote to the judge after reviewing transcripts of the recordings.

The psychiatrist’s reference to the recordings appears in a court document in which certain sections are blackened out. Neither prosecutors nor defense lawyers would comment for this article.

An error has occurred. Please try again later.

You are already subscribed to this email.

The reference does not indicate whether Mr. Ghailani was overheard making incriminating statements. He has been charged with conspiring in Al Qaeda’s 1998 bombings of two American Embassies in East Africa, which killed 224 people.

But the recordings show how conversations overheard while Mr. Ghailani was in military custody were used by a court to help determine that he was competent to stand trial in a civilian court.

Citing the recordings and other materials, the psychiatrist, Dr. Gregory B. Saathoff, found Mr. Ghailani was not suffering from any mental illness that would render him incompetent for trial. He also said Mr. Ghailani did not suffer from post-traumatic stress syndrome; a defense psychologist had concluded that he did, saying it stemmed from his treatment in C.I.A. custody.

Prosecutors told the judge last year after Mr. Ghailani appeared in federal court that they would not be introducing against him any statements he “may have made while he was in custody of other government agencies.”

Last April, prosecutors said they would not use at trial any statements Mr. Ghailani had made “in response to interrogation” while in C.I.A. or military custody. It would seem that the overheard conversations were not the product of interrogations, although Mr. Ghailani’s lawyers have argued throughout the case that any statements he made in his nearly five years of detention are tainted and inadmissible.

Jonathan Hafetz, a national security law expert at Seton Hall University, said Mr. Ghailani’s case “shows the variety of different purposes for which recordings might be used” in civilian court. It is not known how many other detainees’ conversations have been recorded in the same manner.

It is known, though, that much activity at Guantánamo has been under surveillance. The government said in 2008, for example, that guards used round-the-clock video recording to “ensure good order and discipline” at the facility. And a 2008 report by the Center for Policy and Research at Seton Hall Law School, called “Captured on Tape,” said all interrogations conducted at Guantánamo since 2002 had been videotaped.

A version of this article appears in print on October 27, 2010, on Page A25 of the New York edition with the headline: Candid Talks By Detainee Were Caught On U.S. Tapes. Order Reprints|Today's Paper|Subscribe